Monday, November 18, 2013

Cushman on the Court-Packing Plan and Gridlock

Barry Cushman, Notre Dame Law School, has posted The Court-Packing Plan as Symptom, Casualty, and Cause of Gridlock, which appeared in the Notre Dame Law Review 88 (2013). Here is the abstract:

This essay, prepared for the Notre Dame Law Review's Symposium, “The American Congress: Legal Implications of Gridlock,” considers three ways in which President Franklin D. Roosevelt’s 1937 Court-packing bill was related to the phenomenon of gridlock in the 1930s. First, as FDR's public remarks on the subject demonstrate, he believed that the early New Deal was a victim of partisan gridlock between the Democrat-controlled political branches and the Republican-controlled judiciary. Moreover, he did not believe that the impasse could be overcome through an amendment to the Constitution, for he regarded Article V's supermajority requirements as virtually encoding gridlock into the amendment process. The Court-packing bill was thus a response to that interbranch gridlock. Second, the bill was itself a casualty of gridlock within Congress owing to two institutional features of that body: the committee system, and the Senate filibuster. Third, the Court-packing fight helped to cement a bi-partisan anti-New Deal coalition in Congress that mobilized to frustrate much of the President's second-term agenda, resulting in gridlock between the President and Congress. The Court-packing controversy thus managed, in a single, high-profile episode, to present in sharp relief and in a variety of configurations the gridlock-related implications of several features of our political and constitutional system.